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TOPIC: The Rights Of The Dead

The Rights Of The Dead 07 Dec 2008 07:15 #159

The late Lord Michael Young of Dartington and Peter Jupp collaborated in drafting the Dead Citizen Charter here in the United Kingdom.
Michael Young felt passionately that dead citzens had rights and has been quoted to claim that they have hundreds of rights in law, eg to control the inheritances and copyrights.
I wish to gain knowledge of what laws exists both in Engalnd and the USA and I would be interested to hear from anyone that may be able to share their knowledge with me.
Many thanks
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Re:The Rights Of The Dead 11 Dec 2008 11:49 #164

  • northstar73
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teresaevans25,

In the United States, once we die, we go from being a person to being "property". As property, we have people who have "legal custody" and those that have "constructive custody". Simply put, something must be done with a dead human body and the family, through legal custody of the remains, often contracts with a funeral service provider, granting them the constructive custody of the body to transfer it from place of death and arrange for traditional burial or entombment of the remains or cremation of the remains. Ironically enough, as far as the states are concerned, once the remains have been cremated they no longer pose a health hazard to the public and are no longer considered "property". That is why a family may do with them as they will with little to no legal ramifications or regulations, unlike caring for the disposition of a human body that is not cremated.

As far as legal issues like copyrights and patents are concerned, those are usually managed by the estate of the deceased and the subsequent administrators or executors of said estate. In many cases, the deceased individuals will leave a will, but such a document is only a suggestion for how the estate is to be handled. Probate courts can and have overturned and changed directions of a person's will based upon grievances filed by the family of the deceased.

I hope this answers some of your questions. Please feel free to be more specific on any topics if you wish for further elaboration.
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Re:The Rights Of The Dead 09 Jan 2009 09:21 #184

In the UK there exists a common law that prohibits an indignity to a corpse and an offender could face criminal prosection. Further this is recognized by the Human Rights Act 1998 does anyone believe that it could be possible that if a funeral undertaker is falsely suggesting that the law requires that a body is embalmed, and the family later learn that this is a falsehood, then surely this could be construed as an indignity to a corpse?
Would welcome comments from the forum members!
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Re:The Rights Of The Dead 20 Jan 2009 08:13 #187

  • northstar73
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teresaevans25,

Regarding your question about a embalming being fraudulently suggested, there would be two issues with this:

1. Funeral homes in the US are governed by the Federal Trade Commission (FTC). The FTC has many disclosures that it requires on the various price lists that the funeral home is required to present to a family before discussion of goods and services. One of these disclosures regards embalming and states:

"Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing. If you do not want embalming, you usually have the right to choose an arrangement that does not require you to pay for it, such as direct cremation or immediate burial."

IF a funeral home is following the mandatory FTC rules, they will not only charge for embalming on their statement, but also disclose WHY embalming was required.

2. Embalming of a body without permission here in the US can be considered "Mutiliation of a corpse", similar to the "indignity to a corpse" that you mention. Mutiliation is a serious word, and for many brings up rather sordid mental images. Most funeral homes are very aware of properly disclosing embalming to a family because a headline in the local paper that reads "Funeral Home Accused of Mutilation" would really be bad for business. There is one exception to this however. If a funeral home takes possession of a body (say the hospital RN was told by the family to call the funeral home and release the body so the funeral home doesn't speak with the next of kin), is unable after "reasonable" efforts to locate the next of kin for permission, and lacks the ability to hold the remains in refrigerated storage, that funeral home may embalm the body and obtain permission after the fact. I quoted the term "reasonable" as that is variable under the law and all I can recommend is that the funeral home document every effort they made to obtain permission before proceeding with the embalming. You cannot try calling the family once, get no answer, and say that was a "reasonable" effort. Note however that in this case, if a family chooses a service that does not require embalming, most funeral homes do not charge for it either (sorry, I cannot remember if it is legal TO charge for it). The embalming was simply done to hold the body in the same type of manner that refrigeration would be used. That is not to say that charges for sheltering and holding the body cannot be applied, each situation is unique.

To answer your question about liability if later learned to be told it was required under false pretense...yes, it can be construed as breaking the law and prosecuted. Any funeral establishment that charges for embalming but has not gotten permission to do so and listed the reason on the Statement of Goods and Services (a copy of which the family must be given) is opening themselves to a lawsuit.

I hope I created more answers than questions...
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Re:The Rights Of The Dead 27 May 2009 23:09 #214

  • lenox21
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I am very pleased with the thought and don’t feel like adding anything in it. It’s a perfect answer
lenox
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Re:The Rights Of The Dead 13 Jul 2010 04:53 #340

  • erik6484
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yes its a nice reply you and i am really happy tom find this.Its really a perfect answer.

============
Erik
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